Kiran Raj

The Supreme Court Three-Judge Bench of Chief Justice B. R. Gavai, Justice K. Vinod Chandran, and Justice N. V. Anjaria issued comprehensive directions to ensure that investigating agencies do not arbitrarily summon advocates in criminal cases over the legal advice rendered to accused persons. The Court, while disposing of a suo motu case initiated to address this concern, held that the provisions of Sections 132 to 134 of the Bharatiya Sakshya Adhiniyam are designed to protect lawyers from coercion or intimidation to disclose privileged communications with their clients. It directed that investigating officers must act strictly within the limits of law and respect the confidentiality of professional advice, cautioning that violations could amount to infringement of constitutional rights. The judgment reinforces the principle that advocates cannot be compelled to divulge client information except in circumstances expressly permitted by law.

The matter originated from a suo motu proceeding taken up by the Supreme Court concerning the practice of investigating agencies summoning advocates representing accused persons to provide information about legal advice given in criminal cases. The issue came to the Court’s attention after certain investigating officers issued summons to lawyers who had prepared legal opinions or represented accused individuals, seeking details of client interactions and advice rendered during legal consultations. The Court examined whether such actions infringed upon the confidentiality of the advocate–client relationship and violated professional privilege recognized under law.

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During the hearing, the Court considered submissions highlighting that the relationship between an advocate and client is protected by evidentiary privilege under Sections 132 to 134 of the Bharatiya Sakshya Adhiniyam, which restricts disclosure of communications made in professional confidence. References were made to the duties and ethical obligations of advocates under the Advocates Act, 1961, and the Bar Council of India Rules, which require lawyers to maintain client confidentiality as an essential part of their professional conduct. The Court also reviewed the statutory provisions governing the powers of police officers to issue summons or seek evidence during investigations, including the relevant clauses under the Code of Criminal Procedure, 1973, and examined whether such powers could extend to compelling disclosure from advocates.

The records placed before the Court included communications and summons issued by certain investigating agencies to advocates, seeking case-related information. The content of these summons indicated that the purpose was to verify the accuracy or legitimacy of legal advice given to accused individuals. The Court scrutinized whether such steps were consistent with legal privilege and constitutional protections available to citizens and their counsel. Arguments were presented that compelling lawyers to disclose privileged communications would undermine the right to fair legal representation and disrupt the foundational trust between client and counsel.

The proceedings also involved examination of the professional role of in-house counsels and external advocates, distinguishing between advice given in an employment context and that provided in independent professional capacity. The Court analyzed precedents and statutory safeguards ensuring that advocates are not subject to arbitrary interference or pressure during the course of their professional duties. The factual discussion centered on determining the legal boundaries within which investigating agencies may interact with advocates, and whether any exceptions to privilege could apply in the interest of justice or investigation integrity.

The Court observed that the suo motu proceedings were undertaken “to protect the sanctity of professional privilege and to prevent any form of interference with the independence of advocates in the discharge of their duties.” It stated that “Sections 132, 133, and 134 form a triad of protection shielding legal practitioners from being compelled to disclose any communication made in the course of professional engagement.” The Bench recorded that the privilege “exists not for the benefit of the lawyer but for the protection of the client, ensuring candour and trust in legal representation.”

It noted that “there is an obligation cast on him to provide his client the maximum protection as by law established, in furtherance of the client's cause. It is hence the codified obligation, while maintaining absolute sincerity to the cause of justice, ensuring strict and absolute confidentiality with the communications made by his client regarding the cause, for which he is engaged.”

Reflecting on the conduct of a few within the profession, the Court recorded: “The occasional black sheep who tread the uneven, muddy lanes of deceit, in purported protection of the interest of the client, which though a minority, does, sadly exist in our system. We say ‘our system’ with emphasis since Judges cannot distance themselves from the fraternity of lawyers, to which they once belonged and to which they owe their present status.”

The judgment added: “The provision providing protection to the privileged communications between the lawyer and the client is not to protect those deviants but to ensure that the vast majority, who are day in and day out, involved in the task of administration of justice are not victimised or bullied into making disclosures of their communications with their clients, merely for reason of having represented a client of questionable conduct or having some ill-repute or disrepute.”

The Bench recorded that “any attempt by an officer of investigation to compel or coerce an advocate to disclose what has been communicated in confidence would amount to an abuse of authority,” and that “the privilege under Section 132 cannot be diluted through investigative summons or oral directives.” The Court concluded that “the role of the advocate in the justice delivery system is not ancillary but integral, and protection of professional privilege is essential to the administration of justice.”

The Court, after considering the extent of client–advocate privilege codified under Sections 132 to 134 of the Bharatiya Sakshya Adhiniyam, 2023, issued directions to safeguard professional communications from unwarranted interference. It recorded that “though we are not persuaded to lay down any guidelines, which we believe are sufficiently available on an interpretation of the provisions itself, which also restrains us from constituting a committee of legal professionals, we issue the following directions to ensure that the privilege is not impinged upon by valiant investigators or overzealous parties to a litigation.”

“Section 132 is a privilege conferred on the client, obliging an Advocate not to disclose any professional communications, made in confidence, which privilege, in the absence of the client can be invoked by the Advocate on behalf of the client.”

“The Investigating Officers in a criminal case or a Station House Officer conducting a preliminary inquiry in a cognizable offence shall not issue a summons to an Advocate who represents the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132.”

“When a summons is so issued to an Advocate, under any of the exceptions, it shall explicitly specify the facts on which the exception is sought to be relied upon, which shall also be with the consent of the superior Officer not below the rank of a Superintendent of Police who shall record his satisfaction as to the exception in writing, before the summons is issued.”

“A summons so issued shall be subject to judicial review at the instance of the Advocate or the client under Section 528 of the BNSS.”

“Production of documents in the possession of the Advocate or the client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case.”

“In a criminal case, the production of a document directed by a Court or an Officer shall be complied with by production before the Court under Section 94 of the BNSS; being regulated also by Section 165 of the BSA.”

“In a civil case, the production of a document shall be regulated by Section 165 of BSA and Order XVI Rule 7 of the Civil Procedure Code.”

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“The production of a digital device under Section 94 of the BNSS if directed by an Investigating Officer, the direction shall only be to produce it before the Jurisdictional Court.”

“In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA.”

“The In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the In-house counsel.”

“With the above directions, we dispose of the Suo Motu case, setting aside the summons issued in the SLP (Crl.) No. 9334 of 2025 and cautioning gallant Investigating Officers from transgressing impulsively, the privilege under Section 132, which could result in violating the statutory provision and more importantly result in the infringement of the fundamental rights guaranteed to the person whom the Advocate represents, by the Constitution of India.”

Case Title: In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues
Neutral Citation: 2025 INSC 1275
Case Number: Suo Motu Writ Petition (Criminal) No. 2 of 2025 & Ors. (with Writ Petition (Civil) No. 632 of 2025; SLP (Criminal) No. 9334 of 2025)
Bench: Chief Justice B. R. Gavai, Justice K. Vinod Chandran, Justice N. V. Anjaria